Employers erupt as ash cloud extends employees’ holidays. What can you do?

With thousands of people already stranded, the ash cloud is set to return to cause even more disruption to holidaymakers. Many questions are being raised as to where employers and employees stand in relation to absences from their workplace due to this ‘act of god’.

So, just where do you stand? Our employment team has prepared a useful Legal Update covering some points you need to be aware of.

Withholding pay

Generally speaking, employees are obliged to attend work and employers are obliged to provide work and pay the employee for the work they do. Therefore, if employees fail to turn up for work, unless their contract says otherwise, employers are entitled to treat their absence as unauthorised and the obligation to pay them falls away.

However, there are a number of other important considerations for employers irrespective of the formal contractual position.

Other ways to put out the fire

Employers should bear in mind that employees have a statutory right not to suffer unlawful deductions from wages. A deduction from wages will be unauthorised if there is no contractual basis for the deduction. In those circumstances, deducting pay would be potentially subject to challenge in the Employment Tribunal.

Other than lawfully withholding pay for non-attendance at work, there are other alternatives which employers may wish to consider, such as:

paying employees in return for their agreement that they will make up the time on their return

agreeing with the employee that they will take the time off as paid holiday

splitting the employee’s time spent off as 50% (un)paid leave and 50% holidays

where facilities exist, allowing the employee to work from abroad.

It is questionable whether employers are able to compel the use of holiday entitlement. Unless the individual’s employment contract contains an express right for the employer to direct when their holiday is taken, it is doubtful whether employers can force employees to take a day’s holiday without their consent, particularly after the event. The statutory procedure which employers use to designate holidays, requires notice of at least twice the length of the period of holiday, which renders it impractical. If an employer intends to deduct days off from an employee’s holiday entitlement, they are advised to make this clear to staff at the earliest opportunity.

Dealing with employees who make heavy weather of it.

If an employer is concerned that an employee is taking advantage of the ash cloud to avoid returning to work, they may choose to investigate the matter further and consider disciplinary action. It should be fairly straight forward to establish whether an employee’s flight returned home when they claim that it did.

Employers may wish to encourage employees to explore alternative means of transport, particularly where the employee is scheduled to travel on an internal UK flight.

Time to make the problem extinct

Travel disruption, whether because of ash clouds or snow chaos, is increasingly more common. It would be worthwhile taking this opportunity to amend absence policies or procedure. In addition, where possible, contracts of employment should be amended to allow employers to withhold payment of wages and to require employees to take annual leave in situations where travel restrictions prevent their timeous return to work.